COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Hamilton-Wenham Regional School District BSEA #04-3900

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.

The Hearing Request was filed on March 22, 2004, a Pre-Hearing Conference was held on April 29, 2004, and a one-day Hearing was held on May 17, 2004 in Malden, MA before William Crane, Hearing Officer. Those who participated in part or all of the Hearing were:

Student[1]

Student’s Mother

Alex Tsonas Director, Seaport Campus

Deborah Frontierro Director of Special Education, Hamilton-Wenham RSD

Catherine Lyons Attorney for Hamilton-Wenham RSD

The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-34; documents submitted by the Hamilton-Wenham Regional School District (Hamilton-Wenham) and marked as exhibits S-1 through S-24; testimony of Mr. Tsonas and Ms. Frontierro; and approximately one day of recorded oral testimony and argument. Oral closing arguments were made at the end of the Hearing day on May 17, and the record closed on that date.

ISSUE

The issue to be decided is whether the IEP for the period 6/9/03 to 6/8/04[2] proposed for Student by Hamilton-Wenham is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment.

POSITIONS OF THE PARTIES

Parent believes that her son can be appropriately served only in a residential educational placement. Through this placement, she seeks a therapeutic environment which includes medical doctors who would be able to help her son with his mood disorder and which can address all of her son’s emotional needs. She also asks that this placement be able to address his language disabilities and teach him to become an independent learner. Parent takes the position that her son’s needs can only be met in a residential setting because he requires a significant amount of structure in order to succeed. She notes that her son, who is an adult, wants to attend a residential school.[3]

Hamilton-Wenham takes the position that all of Student’s educational needs can be met appropriately within a therapeutic day school, and that a residential placement is not needed for educational reasons. Hamilton-Wenham believes that Student’s most recent placement (a private, therapeutic day placement) was and continues to be appropriate. However, Hamilton-Wenham has also been seeking to identify other private, therapeutic day placements that may be appropriate, including the Bay Cove program.

PROFILE AND IEP

Student is twenty years old (date of birth 8/5/83) and resides with his Parents in Hamilton, MA, which is within the Hamilton-Wenham school district. He has been diagnosed with social and emotional deficits, as well as attention deficit hyperactivity disorder (ADHD), a learning disability and executive functioning difficulties. Student has average intelligence. Testimony of Frontierro, Tsonas; exhibits P-6, P-7, S-21.

Most recently, Student was a 12th grader at the Seaport Campus of the Schools for Children (Seaport), which is a private, therapeutic day school in Charlestown, Massachusetts, until he withdrew in March 2004. Student has not been receiving educational services from Hamilton-Wenham since that date although a variety of educational services and placements have been offered. Testimony of Frontierro.

Hamilton-Wenham’s most recent individualized education program (IEP) for Student proposes that Student receive all academic services in a special education program. Counseling services of 42 minutes per day are also included in the IEP. Parent has rejected this IEP. Exhibits P-1, S-19.

FACTS

· Alex Tsonas testified that currently and for the past four years, he has been employed by Seaport as its Director, and immediately prior to this position, he was employed as a counselor at Seaport for two years. Mr. Tsonas has held a variety of human services positions since 1992, and holds an MSW degree which he received in 1998.

Mr. Tsonas testified that in his position as Director of Seaport, he oversees the management of the program, supervises staff, participates in admission decisions, oversees the schools’ attendance coordinator, and teaches several elective classes. He explained that he has gotten to know Student by working with him directly, teaching him in two courses (health and computers), helping with his behavioral management system, conducting his educational assessment and functional behavioral assessment, and generally overseeing his program for the 2002-2003 and 2003-2004 school years.

Mr. Tsonas testified that Seaport is a small, therapeutic day school for students aged 14 to 22 years old; it provides math, English, sciences, history and elective courses; it has certified special education teachers as well as certified regular education teachers; and it offers an array of therapeutic services, including individual counseling (once per week for 40 minutes for each student, and additional individual counseling as needed), group counseling (once per week for 40 minutes), family outreach, and social and emotional support throughout the day. He explained that there is a behavior management program, involving progressive actions from warning to time-out, as well as a level system of four tiers which allows students to earn greater responsibility and opportunities within the program.

Mr. Tsonas testified that Student attended Seaport for the 2002-2003 school year and for the 2003-2004 school year until he withdrew in March 2004. Mr. Tsonas explained that Student made progress, both academically as well as socially and emotionally. He noted that except when Student had significant absences, Student did well in the classroom, working hard, producing “good” work, making academic progress and earning grades of A, B and C in all of his courses. Mr. Tsonas further explained Student’s progress with respect to his social and emotional difficulties – Student attended and was “productive” in both his individual and group counseling sessions, taking on a leadership role in the group counseling. He also explained that Student made significant progress addressing his behavioral issues.

Mr. Tsonas testified that at Seaport, Student’s language-based disability, attention deficit and executive functioning deficits were addressed through multisensory teaching methods (including visual aides, graphic organizers, use of computers, interactions with other students and use of portfolios), through teaching of organizational skills, through small classes (up to eight students in a class) and various accommodations (including repetition of instructions and reduced assignments). Mr. Tsonas noted that while at Seaport, Student passed both the math and language arts sections of the MCAS examination. Exhibit S-20.

Mr. Tsonas testified that Student’s only significant impediment to his progress and success at Seaport was his failure, at times, to attend school on a regular basis. He explained that Seaport has a policy that if a student is absent more than eight days (out of forty-one days) in a term, the student receives a grade of F for that term. He noted that Student was absent more than eight days during the 3rd and 5th terms of the 2002-2003 school year, and the first two terms of the 2003-2004 school year, and therefore received a grade of F for each of these terms. Mr. Tsonas had no knowledge (except for what he informally learned from other students) as to why Student was absent from Seaport at these times. Exhibit P-21.

Mr. Tsonas testified that, in his opinion, Student’s educational needs can be met satisfactorily by a therapeutic day school (such as Seaport) where his social and emotional deficits can be met and where accommodations can be made to address his learning needs. He concluded that residential services are not necessary in order to meet Student’s educational needs.

· Deborah Frontierro testified that currently and for the past four years she has been the Director of Special Education for the Hamilton-Wenham Regional School District, and in this capacity, she oversees all of the special education staff, coordinates all of the out-of-district placements, and supervises all of the School District’s special education programs. She explained her extensive experience as a teacher and administrator beginning in 1972; she has a masters degree in counseling (1992) and a certificate of advanced graduate studies in special education administration (2004).

Ms. Frontierro testified that she became familiar with Student in 2001, is familiar with his school records and the exhibits in this dispute, has attended his Team meetings from 2001 to 2004, and has overseen his educational program during this time period.

Ms. Frontierro testified that she stayed in close communication with Mr. Tsonas regarding Student's progress at Seaport, receiving monthly attendance reports, quarterly progress reports and frequently talking by phone. She believes that Student was successful and made significant educational progress at Seaport. She noted that even with Student’s failing all courses during his 3rd and 5th terms (because of excessive absences), he was able to pass (and receive academic credit for) all of his course work during the 2002-2003 school year, although Student received no course credit for the 2003-2004 school year because of excessive absences during the first two terms and then his withdrawal from Seaport in March 2004.

Ms. Frontierro testified that Student began attending Seaport because Parent had approached Ms. Frontierro suggesting placement there; Ms. Frontierro then inquired about the school and agreed that it would be an appropriate school for Student; and Hamilton-Wenham proceeded to place Student there.

Ms. Frontierro testified that she has reviewed the evaluations (and their recommendations) by Dr. Bekken and Dr. Kemper. She opined that placement at Seaport was satisfactorily addressing their concerns.

Ms. Frontierro testified that in an effort to identify other private, therapeutic day schools that might be appropriate for Student (since he and his Mother do not want him to return to Seaport), she sent out referral packets (sanitized of identifying information) to a number of private schools. She reported that Student has been accepted, subject to an intake meeting with Student, at the Bay Cove program. She opined, after reviewing this program and what it would offer Student, that it would appropriately meet Student’s social and emotional needs, as well as his learning deficits. She also noted that Harbor School has indicated a willingness to meet with Student to work towards developing an appropriate placement for him.

Ms. Frontierro testified that she believes that all of Student’s educational needs can be satisfactorily addressed within a day school with a therapeutic component and the ability to accommodate Student’s learning disability and related learning needs. She believes that there is no educational rationale that would support residential services for Student.

Ms. Frontierro testified that in the past she has placed Student into two different residential schools, both of which he left; she approved these placements in order to accommodate Parent’s and Student’s wishes even though she does not believe that such a placement is required for educational reasons.

· Kaaren Bekken, PhD, completed a neuropsychological evaluation of Student on March 18 and April 12, 2003. Dr. Bekken found that Student has ADHD, a broad based learning disability (that affects math, reading and written expression), and executive functioning difficulty (for example, planning, multi-tasking, organization). She also noted that depression is present and that “behavior is negatively affected by cognitive difficulty.”

In her report, Dr. Bekken concluded that Student would do best in a small, structured setting, with opportunities for 1:1 assistance. She further recommended reading remediation three times per week, math tutoring and work on written expression (three times per week; individual or very small group). She also suggested accommodations within the classroom to address his attentional issues, that teachers help him organize materials and assignments, that medication may be appropriate to address his depression, and that counseling be continued. Exhibits P-6, S-21.

· Robert Kemper, PhD, completed a psycholinguistic evaluation of Student on 12/11/03. Dr. Kemper made the following recommendations:

[I]t is recommended that [Student’s] educational team consider his placement in a therapeutic educational environment that is able to address an array of needs that are manifested in [Student’s] language-based learning disability, such as reading, written expression, listening comprehension, oral expression, vocational, and sociocommunicative functioning. It is important that [Student’s] educational program have a small student ratio (maximum of 8:1), and provide therapeutic counseling as well as educational activities that are presented in a highly structured, systematic, multisensory format. Because of [Student’s] need to internalize sociocommunicative skills and strategies across a variety of contexts, it is recommended that his program be residential.

Exhibit P-7

· A letter to whom it may concern, dated April 16, 2001, from Thomas M. Seman, MD, FAAP, of the North Shore Pediatrics at Beverly Hospital, stated that the “episodes on April 14, 2001 attest to the difficulties that [Student] is having outside of a very controlled environment.” Dr. Seman then states in the letter that as Student’s primary care physician, he therefore recommends that Student be placed “in an appropriate hospital setting according to Chapter 12 of the Massachusetts General Laws in order for him to obtain the appropriate treatment for his Substance Abuse and Adolescent Adjustment difficulties.” Exhibit P-11.

DISCUSSION

1.  Introduction

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act[4] and the state special education statute.[5] As such, Student is entitled to a free appropriate public education (hereafter, FAPE).[6] Neither his eligibility status nor his entitlement to FAPE is in dispute.

FAPE requires that the individualized education program (hereafter, IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.[7]

The principal issue presented is whether the programming and specialized services embodied in Hamilton-Wenham’s proposed IEP are consistent with this legal standard.

2.  Hamilton-Wenham’s IEP and Placement at Seaport

It is not disputed that Student has social and emotional deficits (including perhaps depression), as well as attention deficit hyperactivity disorder (ADHD), a learning disability and executive functioning difficulties. Student has average intelligence. Testimony of Frontierro, Tsonas; exhibits P-6, P-7, S-21. The parties also agree that a private, therapeutic school, which can address appropriately Student’s social and emotional issues as well as his learning disability and executive functioning difficulties, is appropriate for Student. A therapeutic day placement is reflected within Hamilton-Wenham’s proposed IEP. Exhibits P-1, S-19. Parent and Student seek a therapeutic residential placement.